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Citation: 2004TCC633
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Date: 20041012
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Docket: 2004-2449(IT)APP
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BETWEEN:
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ANDRÉ LORD,
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Applicant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR ORDER
Bédard J.
[1] This is an application made under
subsection 167(5) of the Income Tax Act ("the Act")
to obtain an order to extend the time within which the applicant
may appeal from the decision of the Minister of National Revenue
("the Minister"). The Court must determine whether the
applicant's application to extend the time for appealing for the
1990 taxation year is well-founded.
[2] On June 28, 1994, the Minister
sent the applicant a notice for reassessment for the 1990
taxation year. On or about September 23, 1994, the applicant
served the Minister a notice of objection to the reassessment
dated June 28, 1994, for the 1990 taxation year. By
registered mail sent on November 6, 2003, the Minister informed
the applicant that he had confirmed the reassessment dated
June 28, 1994, for the 1990 taxation year. The applicant did
not appeal to the Court within the set time, which expired on
February 4, 2004, with regard to the reassessment dated
June 28, 1994, which was confirmed on November 6, 2003.
On May 31, 2004, the applicant made an application to the Court
for an order extending the time for appealing from the
reassessment dated June 28, 1994, for the 1990 taxation year.
[3] In 1994, the applicant had engaged
the services of Sylvain Castonguay to prepare and serve notices
of objection to the assessments that had been made for the 1990,
1991, and 1992 taxation years, including the assessment
established on June 28, 1994, for the 1990 taxation year.
Those assessments had been established with regard to investments
the applicant had made in FTN enr., a research and
development company. When he received the notice from the
Minister dated November 6, 2003, which confirmed the reassessment
of June 28, 1994, for 1990, the applicant believed that Mr.
Castonguay was still looking after his file, even though he had
not heard from him since 1998. The only steps the applicant took
between November 6, 2003, and the end of March 2004 were the
following: he had called Mr. Castonguay a number of times
and had gone to his office three times, but had not managed to
speak to him or meet with him.
[4] The applicant testified that, at
the end of March 2004, he had met with Mr. Douglas Atherton,
a co-ordinator of a pool of investors who participated in
research and development projects. Mr. Atherton testified that he
had told the applicant that Mr. Castonguay was no longer
working on the investors' files, and therefore, he was not
working on the applicant's files. Mr. Atherton had thus strongly
recommended that the applicant come to a meeting of investors
that was to be held in April 2004. Mr. Atherton explained
that, during that meeting at the beginning of April 2004, he had
given the applicant a model pleading to enable him to submit an
application to extend the time. The applicant testified that,
following that meeting, he had contacted Mr. Charles Lemire of
the Shawinigan Appeals Division.
[5] It should be pointed out that the
Court had sent the applicant a copy of the letter dated October
30, 2002, (Exhibit I-1) that had been addressed to
Mr. James Bonhomme, and in which the Court acknowledged
receipt of the notice of Mr. Bonhomme's removal of counsel of
record in the case concerning the 1992 taxation year. When he was
questioned about his actions further to the receipt of that
letter, the applicant responded as follows:[1]
[TRANSLATION]
I do not remember receiving that letter. In any case, Mr.
Bonhomme . . . That meant nothing to me. Mr. Castonguay is the
person I wanted to talk to.
[6] Did the applicant comply with
subsection 167(5) of the Act and is he entitled to an extension
of the time to file his notice of appeal? Subsection 167(5)
of the Act reads as follows:
167(5)
(5) When order to be made. No order shall be made under
this section unless
(a) the application is made within one year after the
expiration of the time limited by section 169 for appealing;
and
(b) the taxpayer demonstrates that
(i) within the time otherwise limited by section 169 for
appealing the taxpayer
(A) was unable to act or to instruct another to act in the
taxpayer's name, or
(B) had a bona fide intention to appeal,
(ii) given the reasons set out in the application and the
circumstances of the case, it would be just and equitable to
grant the application,
(iii) the application was made as soon as circumstances
permitted, and
(iv) there are reasonable grounds for the appeal.
[7] The time for appealing under
section 169 of the Act expired on February 4, 2004. The
applicant filed his application to extend the time on
May 31, 2004. Therefore, the application was submitted in
the year following the expiration of the time set out in section
169 of the Act for appealing. Thus the applicant complied with
paragraph 167(5)(a) of the Act.
[8] Before granting the application to
extend the time for appealing, the Court must be convinced that,
within the time limit for appealing (in this case, the time
expired on February 4, 2004), the applicant was unable to act or
to instruct another to act in his name, or he had a bona fide
intention to appeal. These two conditions, which appear in
subparagraph 167(5)(b)(i) of the Act, are disjunctive.
[9] The burden was on the applicant in
this case to show, based on the balance of probabilities, that he
had an intention to appeal before February 4, 2004.
[10] The applicant, who was to demonstrate
that he had an intention to appeal within the set timeframe,
presented evidence that consisted solely of his own testimony:
according to his testimony, the applicant had believed that
Mr. Castonguay was still taking care of his file; the
applicant had called him a number of times and had gone to
Mr. Castonguay's office three times without ever managing to
speak to him. How could the applicant think that his counsel was
looking after his file when he was not even able to speak to him
or meet with him? I am of the opinion that, in such
circumstances, a taxpayer who is the least bit wise and cautious
would need to take other actions before the deadline. Indeed, if
a taxpayer is not able to contact his counsel and he has a bona
fide intention to appeal, he should either verify the status of
his counsel with the Barreau du Québec, send a
letter to his counsel so that he can have documentary evidence in
his file, contact the Court or the tax authorities to obtain
information on his file or how to appeal, or contact another
counsel or any other person who can help him. The applicant did
not take any of these steps prior to the deadline. The
applicant's conduct with regard to the letter dated October 30,
2002, (Exhibit I-1) clearly shows his negligence and
carelessness. How can the conduct of a taxpayer who does
absolutely nothing when he is notified that he is no longer
represented be explained otherwise?
[11] Was the application to extend the time
made as soon as circumstances permitted? The evidence showed that
the applicant had learned at the end of March 2004 that his
counsel was no longer representing him, yet he did not make his
application to extend the time until the end of May 2004, two
months after he learned the bad news. The evidence did not reveal
any special circumstances that explain this delay.
[12] For these reasons, I conclude that the
application to extend the time must be dismissed.
Signed at Ottawa, Canada, this 12th day of October
2004.
Bédard J.
Translation certified true
on this 20th day of January 2005.
Colette Dupuis-Beaulne, Translator
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